Johnston v Johnston [2016] NSWCA 52

Johnston v Johnston [2016] NSWCA 52

The accepted offer was a mixed offer: it secured probate in solemn form and dismissal of the cross-claim in favour of the applicants, while also requiring payment of monetary sums to the respondents. Because r 42.13A contemplates mutually exclusive situations, it did not apply and costs fell within the general discretion under s 98. However, remittal was inappropriate because further litigation about costs would be disproportionate, the parties had already had the opportunity to address costs, and no substantial wrong or miscarriage had been shown. Leave to appeal was granted, but the appeal was dismissed with costs.

Jurisdiction
Australia
Judgment Date
21 March 2016
Procedural Posture
Application for Leave to Appeal From Costs Orders Following Settlement of Contested Probate Proceedings / Court of Appeal; Leave to Appeal Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['offer of Compromise' 'mixed Offer' 'costs Following Settlement' 'probate in Solemn Form' 'caveat' 'testamentary Capacity' 'general Costs Discretion']
['civil Procedure' 'costs' 'probate and Succession'] ['offer of Compromise' 'mixed Offer' 'costs Following Settlement' 'probate in Solemn Form' 'caveat' 'testamentary Capacity' 'general Costs Discretion']

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Procedural Posture

Application for Leave to Appeal From Costs Orders Following Settlement of Contested Probate Proceedings / Court of Appeal; Leave to Appeal Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether the accepted offer of compromise proposed a judgment in favour of the respondents so as to enliven Uniform Civil Procedure Rules 2005 (NSW) r 42.13A(3).' 'Whether the accepted offer of compromise proposed a judgment in favour of the applicants so as to enliven Uniform Civil Procedure Rules 2005 (NSW) r 42.13A(2).' 'Whether the offer was a mixed offer to which r 42.13A did not apply, leaving costs to the general discretion under s 98 of the Civil Procedure Act 2005 (NSW).' 'Whether the matter should be remitted for exercise of the residual costs discretion.']

Ratio Decidendi

The accepted offer was a mixed offer: it secured probate in solemn form and dismissal of the cross-claim in favour of the applicants, while also requiring payment of monetary sums to the respondents. Because r 42.13A contemplates mutually exclusive situations, it did not apply and costs fell within the general discretion under s 98. However, remittal was inappropriate because further litigation about costs would be disproportionate, the parties had already had the opportunity to address costs, and no substantial wrong or miscarriage had been shown. Leave to appeal was granted, but the appeal was dismissed with costs.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal with costs.']